Meeker v. Merit Systems Protection Bd.

• Citation: 319 F.3d 1368
• Decision Date: 20 February 2003
• Docket Number: No. 01-3057.,No. 02-3042.,01-3057.,02-3042.
• Parties: Murray M. MEEKER, F. William Roggeveen, Jay E. Levine, and William S. Colwell, Petitioners, and Kay Coles James, Director, Office of Personnel Management, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and Ann S. Azdell and Donald B. Fishman, Intervenors.
• Court: U.S. Court of Appeals — Federal Circuit

319 F.3d 1368

Murray M. MEEKER, F. William Roggeveen, Jay E. Levine, and William S. Colwell, Petitioners, and Kay Coles James, Director, Office of Personnel Management, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and Ann S. Azdell and Donald B. Fishman, Intervenors.

No. 01-3057.

No. 02-3042.

United States Court of Appeals, Federal Circuit.

DECIDED: February 20, 2003.

William F. Fox, Jr., Professor of Law, The School of Law, The Catholic University of America, of Washington, DC, argued for petitioners, Murray M. Meeker, et al.

Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for petitioner, Kay Coles James, Director, Office of Personnel Management. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; and David M. Cohen, Director. Of counsel on the brief were Mark A. Robbins, General Counsel; Kathie A. Whipple, Deputy General Counsel; Steve E. Abow, Eric S. Gold, Kimya Jones, and Julie Ferguson Queen, Attorneys, Office of General Counsel, Office of Personnel Management, of Washington, DC. Of counsel were Armando O. Bonilla, and Kathryn A. Bleecker, Attorneys, Department of Justice.

Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With her on the brief were Lynn A. Jennings, General Counsel; and Martha B. Schneider, Deputy General Counsel.

William L. Bransford, Shaw, Bransford, Veilleux & Roth, of Washington, DC, argued for intervenors. With him on the brief was Debra L. Roth.

Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC, for amicus curiae The American Legion. With him on the brief was Louis J. George.

Karin L. Kizer, Covington & Burling, of Washington, DC, for amici curiae Disabled American Veterans, et al. With him on the brief were Michael C. Boteler and Harris Weinstein.

Before SCHALL, BRYSON, and LINN, Circuit Judges.

BRYSON, Circuit Judge.

Petitioners Meeker et al. and the Office of Personnel Management ("OPM") appeal a decision by the Merit Systems Protection Board in which the Board concluded that the scoring formula OPM used in 1996 to evaluate candidates for the position of administrative law judge ("ALJ") violated OPM's regulations and the Veterans' Preference Act. We hold that the Board had jurisdiction to review OPM's scoring formula pursuant to the Board's authority to review "employment practices," but that it lacked jurisdiction to review the challenge to the scoring formula based on the Veterans' Preference Act. On the merits, we conclude that the 1996 scoring formula was lawfully adopted pursuant to the OPM Director's authority to grant a variation from strict adherence to the requirements of OPM's regulations and that the scoring formula therefore did not violate those regulations. Accordingly, we reverse the Board's decision in part and vacate its remedial order.

I

In 1993, in accordance with its statutory authority to conduct competitive examinations for ALJs, OPM promulgated the examination scoring formula found at 5 C.F.R. § 930.203. Under that formula, applicants were required to meet minimum qualifying experience requirements. Those who met the experience requirements would be assigned a score on the "supplemental qualifications statement," a statement detailing relevant legal experiences. The applicants would then participate in three additional examination procedures: a written demonstration, a panel interview, and a personal reference inquiry. Those applicants who completed the supplemental qualifications statement and participated in the three additional examination procedures would be assigned a weighted score for each of those four parts of the examination. Based on the results of a 1990 study, OPM weighed the four parts of the examination as follows: (1) the supplemental qualification statement — 50 percent; (2) the written demonstration — 20 percent; (3) the personal interview — 20 percent; and (4) the personal reference inquiry — 10 percent.

Under the 1993 scoring formula, the total of the weighted scores ranged from 0 to 100, with 70 required to pass. In the first group of candidates examined under the 1993 scoring formula, OPM added 10.9 points to each candidate's score in order to bring the lowest weighted score up to a passing grade of 70. Veteran preference points were then added, as appropriate, with ten points being added to the scores of disabled veterans and five points being added to the scores of nondisabled veterans, as provided by the Veterans' Preference Act, 5 U.S.C. § 3309. OPM then compiled a register of all applicants who passed the examination. When agencies requested lists of certified ALJ candidates for positions in various geographic areas, OPM ranked all applicants who were eligible and available for the positions in question. The ranking was based on the assigned final ratings, augmented by veteran preference points if applicable.

In 1996, following an investigation by OPM's Inspector General into fraudulent scoring of the ALJ examinations, portions of the ALJ examination were rescored. After the rescoring, the failure rate on the examination rose dramatically, such that approximately 80 percent of the applicants failed to attain the minimum score of 70 required to qualify for ALJ certification under the 1993 formula.

Because of the extremely high failure rate, OPM decided to modify the 1993 scoring formula, rather than simply adding points to each applicant's score, as had been done before. Under the new formula, applicants who satisfied a minimum requirement of seven years' experience as an attorney involved in administrative hearings or litigation and completed the remaining parts of the examination were assigned a base score of 70 points. Applicants then received scores in accordance with the 1993 formula for the four graded portions of the examination. Under the 1996 formula, however, each applicant's weighted score for those four parts of the examination was multiplied by 0.3, so that the scores on the four graded portions of the examination ranged from 0 to 30 points, rather than from 0 to 100 points as had been the case under the 1993 formula. After the four-part weighted score was added to the 70-point base, any applicable veteran preference points were added to the applicant's total to produce the final score. Like the 1993 formula, the 1996 formula required a score of 70 to pass. Unlike the 1993 formula, however, the 1996 formula guaranteed that any applicant who met the work experience prerequisite and completed the four graded portions of the examination would receive a passing score and be placed on the register, regardless of the applicant's score on the four graded portions. Therefore, any preference eligible applicant would receive veteran preference points as long as the applicant met the work experience prerequisite and completed the graded parts of the examination.

Because the 1996 formula differed from the 1993 formula described in 5 C.F.R. § 930.203, the Director of OPM approved a variation from the regulation using the procedures outlined in 5 C.F.R. § 5.1. Under that regulation, OPM's Director is authorized to "grant a variation from the strict letter" of any OPM regulation whenever there are "practical difficulties and unnecessary hardships" in complying with the regulation, as long as the variation is "within the spirit of the [OPM] regulations, and the efficiency of the Government and the integrity of the competitive service are protected and promoted." 5 C.F.R. § 5.1.

In 1997, nonveteran applicants for the ALJ positions filed a class action appeal to the Merit Systems Protection Board claiming that the 1996 scoring formula was unlawful. Those applicants, referred to as the Azdell class, argued inter alia that the 1996 formula violated 5 C.F.R. § 300.103, which requires that any OPM employment practice, such as an examination procedure for qualifying applicants for a civil service position, must be professionally prepared, rationally related to the duties of the position, and nondiscriminatory. They also argued that the 1996 scoring formula violated the Veterans' Preference Act by giving veterans a greater preference than Congress intended for them to have.

The Board assigned the appeal to the Board's Chief Administrative Law Judge. Following an evidentiary hearing, the Chief Administrative Law Judge issued a decision on the merits of the claim, in which he found that the 1996 scoring formula for the ALJ position violated the OPM regulations and the Veterans' Preference Act. He then issued a separate decision on remedy, in which he ordered certain applicants to be given priority status in selection for open ALJ positions.

OPM sought review of the Chief Administrative Law Judge's decision by the full Board. Four veterans who had applied for ALJ positions, petitioners Meeker, Roggeveen, Levine, and Colwell ("the Meeker petitioners"), intervened and joined OPM's request for review. The full Board granted review and sustained the Chief Administrative Law Judge's ruling in principal part.

The Board held that OPM's 1996 scoring formula violated two of the three subsections of 5 C.F.R. § 300.103. In particular, the Board held that the 1996 scoring formula violated section 300.103(a) because it was not based on a job analysis of the ALJ position. The Board held that the 1996 scoring formula also violated section 300.103(b) because it was not professionally developed and that OPM therefore failed to show that there was a rational relationship between the scoring formula and performance in the ALJ position. The Board also held that the 1996 scoring formula violated the Veterans' Preference Act because, in the Board's view, it increased the effective weight of veteran preference points beyond that intended by Congress. The Board disagreed with the Chief Administrative Law...